Huddleston v. Steuart

Hart, J., (after stating the facts). It is first insisted by counsel for the defendant that the judgment should be reversed because the court erred in refusing to allow the defendant to testify to certain facts before the jury. The defendant Huddleston, while on the witness stand, was asked from whom he got the information in regard to Steuart. The court sustained an objection to the question, and the defendant excepted to the ruling of the court and offered to state as a witness that he had heard the rumor about Steuart having killed his father just as he had stated it to the witnesses for five years, and that he had simply'repeated what had been current rumor in the community for several years. Counsel for the defendant insists that he was liable only for the damage caused by his own remarks, and that the offered testimony was admissible in mitigation of damages. Counsel invoke the rule laid down in Simonson v. Lovewell, 118 Ark. 81, to the effect that in awarding compensatory damages the jury might consider the fact that plaintiff bore the reputation of being a defaulter, or that his reputation for morality was bad in mitigation of damages. This principle had no application in the case at bar. Steuart’s reputation for morality or immorality could not be established by showing that the remarks made by Huddleston were current rumor in the community. Of course Huddleston was only liable for the damages caused by his making the remarks, and was not liable for damages caused by other persons making the same remarks; but the instructions given by the court to the jury fixed the damages to the amount shown by the evidence in the case and thus confined the damages to the remarks made by Huddleston, for none other were proved to the jury. It follows that this assignment of error was not well taken. It is next insisted that the court erred in giving one of plaintiff's instructions on the question of self-defense. It is insisted that 'Steuart followed Huddleston into Ballard’s store and that the instruction ignored the duty devolving upon Steuart to attempt in good faith t'o withdraw or abandon the difficulty before he could invoke the doctrine of self-defense. It is well settled that the court can not cover all the phases of a case in one instruction, and the record shows that when counsel made the objection now complained of to this instruction, the trial court told them that if they would prepare an instruction on self-defense, fully defining it he would give it. This counsel declined to do, and we do not think the court under the circumstances erred in giving the instruction complained of. It is next insisted that the court erred in instructing the jury on the measure of damages. We do not deem it necessary to set the instruction out. It is sufficient to say that it is in accordance with our previous decisions on the question. Townsley v. Yentsch, 98 Ark. 313; Taylor v. Gumpert, 96 Ark. 354; and Murray v. Galbraith, 95 Ark. 199. It is next insisted that the court erred in giving instruction No. 8, which is as follows: “The court instructs the jury that the plaintiff was entitled to act upon appearances, and, if the language and conduct of Huddleston Was such as to induce in the mind of a reasonable man, under all the circumstances then existing and viewed from the standpoint of Steuart, a fear that death or great bodily harm was about to be inflicted by Huddles-ton upon him, it does not matter if such danger was real or only apparent, and, if Steuart acted in necessary self-defense from real and honest conviction as to the character of the danger, if any, your verdict should be for Steuart on the cross-complaint; even though he was mistaken as to the extent of danger. ’ ’ A specific objection was made to this instruction on the ground that the plaintiff must have acted without fault or carelessness on his part before he could invoke the doctrine of self-defense. In this contention we think counsel are correct. It is true that the defendant’s standpoint is the proper one from which to view the immineney of the danger, but such belief on the part of the defendant must be an honest belief, and not due to his own negligence. Mere honesty, however, is not in itself sufficient. The defendant must be free from fault or carelessness. If his belief is due to his own negligence, his honesty is not sufficient to justify the assault as having been done in self-defense. Smith v. State, 59 Ark. 132; Magness v. State, 67 Ark. 594; Hoard v. State, 80 Ark. 87; Pickett v. State, 91 Ark. 570, and Dean v. State, 139 Ark. 434. It may be said in this connection that the negligence which will prevent a homicide from being justifiable is negligence on the part of the slayer in making his self-defense, and not some prior negligence. Elder v. State, 69 Ark. 648. It will be noted that, although specifically requested to do so, the court refused to incorporate into the instruction that the defendant must have acted without fault or carelessness on his part before he could justify the assault as having been done in self-defense. This ruling of the court necessarily resulted to the prejudice of the defendant. Under the instruction as given the jury might have found for Steuart on the theory that he honestly believed that he was about to receive great bodily harm at the hands of Huddleston, regardless of the fact of whether he was negligent or not in forming that 'belief. This is not the law. As we have just seen, he must have acted without fault or carelessness on his own part. For the error in giving instruction No. 8, as indicated in the opinion, the judgment will be reversed, and the cause remanded for a new trial.